After recording please return to:
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
[Camden County, New Jersey]
New York, New York 10017
Attention:
Cynthia Parker
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MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS,
AND FIXTURE FILING
made by
MAFCO WORLDWIDE CORPORATION,
Mortgagor,
to
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent, Mortgagee
Dated as of December 8, 2005
--------------------------------------------------------------------------------
THIS MORTGAGE SECURES FUTURE ADVANCES
TABLE OF CONTENTS
Page
Background.....................................................................1
Granting
Clauses...............................................................1
Terms and
Conditions...........................................................4
1.
Defined Terms................................................4
2.
Warranty of Title............................................4
3.
Payment of Obligations.......................................5
4.
Requirements.................................................5
5.
Payment of Taxes and Other Impositions.......................5
6.
Insurance....................................................5
7.
Restrictions on Liens and Encumbrances.......................6
8.
Due on Sale and Other Transfer Restrictions..................6
9.
Condemnation/Eminent Domain..................................6
10.
Leases.......................................................7
11.
Further Assurances...........................................7
12.
Mortgagee's Right to Perform.................................7
13.
Remedies.....................................................7
14.
Right of Mortgagee to Credit Sale............................8
15.
Appointment of Receiver......................................9
16.
Extension, Release, etc......................................9
17.
Security Agreement under Uniform Commercial Code; Fixture
Filing....................................................10
18.
Assignment of Rents.........................................10
19.
Additional Rights...........................................11
20.
Notices.....................................................11
21.
No Oral Modification........................................11
22.
Partial Invalidity..........................................12
23.
Mortgagor's Waiver of Rights................................12
24.
Remedies Not Exclusive......................................12
25.
Multiple Security...........................................13
26.
Successors and Assigns......................................14
27.
No Waivers, etc.............................................14
28.
Governing Law, etc..........................................14
29.
Certain Definitions.........................................14
30.
Duty of Mortgagee; Authority of Mortgagee...................15
31.
Last Dollars Secured; Priority..............................15
32.
Enforcement Expenses; Indemnification.......................16
33.
Release.....................................................16
34.
New Jersey Environmental Laws...............................16
35.
Receipt of Copy.............................................17
36.
Revolving Credit............................................17
37.
Name and Address of Mortgagee...............................18
MORTGAGE, SECURITY AGREEMENT,
ASSIGNMENT OF LEASES AND RENTS, AND FIXTURE FILING
THIS MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS,
AND
FIXTURE FILING, dated as of December 8, 2005 is made by MAFCO
WORLDWIDE
CORPORATION, a Delaware corporation ("Mortgagor"), whose address is
Third Street
and Jefferson Avenue, Camden, New Jersey 08104, to JPMORGAN CHASE
BANK, N.A., as
Administrative Agent (in such capacity, "Mortgagee") whose address
is Loan and
Agency Services, 111 Fannin, 10th Floor Houston, Texas 77002.
References to this
"Mortgage" shall mean this instrument and any and all renewals,
modifications,
amendments, supplements, extensions, consolidations, substitutions,
spreaders
and replacements of this instrument.
Background
----------
A. Flavors Holdings Inc., a Delaware corporation, Mortgagor, as
Borrower,
the several banks and other financial institutions or entities from
time to time
parties thereto (collectively, the "Lenders"), and Bear Stearns
Corporate
Lending Inc., as syndication agent, and Mortgagee, are parties to
that certain
Credit Agreement, dated as of December 8, 2005 (as amended,
supplemented or
otherwise modified from time to time, the "Credit Agreement"). The
terms of the
Credit Agreement are incorporated by reference in this Mortgage as
if the terms
thereof were fully set forth herein.
B. Pursuant to the Credit Agreement, the Lenders have severally
agreed to
make extensions of credit to the Mortgagor upon the terms and
subject to the
conditions set forth therein.
C. Certain of the Qualified Counterparties may enter into Specified
Hedge
Agreements with Mortgagor.
D. Mortgagor is the owner of the fee simple estate in the parcel(s)
of real
property described on Schedule A attached hereto (the "Land"), and
owns all of
the buildings, improvements, structures, and fixtures now or
subsequently
located on the Land (the "Improvements"; the Land and the
Improvements being
collectively referred to as the "Real Estate").
E. It is a condition precedent to the obligation of the Lenders to
make
their respective extensions of credit to the Mortgagor under the
Credit
Agreement that Mortgagor shall have executed and delivered this
Mortgage to
Mortgagee for the ratable benefit of the Secured Parties.
Granting Clauses
----------------
For good and valuable consideration, the receipt and sufficiency of
which
are hereby acknowledged, Mortgagor agrees that to secure all unpaid
principal of
and interest on the Loans and Reimbursement Obligations and all
other
obligations and liabilities of the Mortgagor (including, without
limitation,
interest accruing
2
at the then applicable rate provided in the Credit Agreement after
the maturity
of the Loans and Reimbursement Obligations and interest accruing at
the then
applicable rate provided in the Credit Agreement after the filing
of any
petition in bankruptcy, or the commencement of any insolvency,
reorganization or
like proceeding, relating to the Mortgagor, whether or not a claim
for
post-filing or post-petition interest is allowed in such
proceeding) to the
Mortgagee or any Lender (or, in the case of any Specified Hedge
Agreement or
Specified Cash Management Agreement, any Affiliate of any Lender),
whether
direct or indirect, absolute or contingent, due or to become due,
or now
existing or hereafter incurred, which may arise under, out of, or
in connection
with, the Credit Agreement, this Mortgage, the other Loan
Documents, any Letter
of Credit, any Specified Hedge Agreement, any Specified Cash
Management
Agreement or any other document made, delivered or given in
connection with any
of the foregoing, in each case whether on account of principal,
interest,
reimbursement obligations, fees, indemnities, costs, expenses or
otherwise
(including, without limitation, all fees and disbursements of
counsel to the
Mortgagee or to the Lenders that are required to be paid by the
Mortgagor
pursuant to the terms of any of the foregoing agreements)
(collectively, the
"Obligations");
MORTGAGOR HEREBY GRANTS TO MORTGAGEE A LIEN UPON AND A SECURITY
INTEREST IN, AND
HEREBY GRANTS, BARGAINS, SELLS, ALIENS, REMISES, RELEASES, CONVEYS,
MORTGAGES,
ASSIGNS, TRANSFERS, HYPOTHECATES, PLEDGES, DELIVERS, SETS OVER,
WARRANTS AND
CONFIRMS UNTO MORTGAGEE, ITS SUCCESSORS AND ASSIGNS FOREVER, WITH
MORTGAGE
COVENANTS:
(a) the Land;
(b) all right, title and interest Mortgagor now has or may
hereafter
acquire in and to the Improvements or any part thereof, and all the
estate,
right, title, claim or demand whatsoever of Mortgagor, in
possession or
expectancy, in and to the Real Estate or any part thereof;
(c) all right, title and interest of Mortgagor in, to and under all
easements, rights of way, licenses, operating agreements, abutting
strips
and gores of land, streets, ways, alleys, passages, sewer rights,
waters,
water courses, water and flowage rights, development rights, air
rights,
mineral and soil rights, plants, standing and fallen timber, and
all
estates, rights, titles, interests, privileges, licenses,
tenements,
hereditaments and appurtenances belonging, relating or appertaining
to the
Real Estate, and any reversions, remainders, rents, issues, profits
and
revenue thereof and all land lying in the bed of any street, road
or
avenue, in front of or adjoining the Real Estate to the center line
thereof;
(d) all of the fixtures, chattels, business machines, machinery,
apparatus, equipment, furnishings, fittings, appliances and
articles of
personal property of every kind and nature whatsoever, and all
appurtenances and additions thereto and substitutions or
replacements
thereof (together with, in each case, attachments, components,
parts and
accessories) currently owned or subsequently acquired by Mortgagor
and now
or subsequently attached to, or contained in or used or usable in
any way
in connection with any operation or letting of the Real Estate,
including
but without limiting the generality of the foregoing, all screens,
awnings,
shades, blinds, curtains, draperies, artwork, carpets, rugs, storm
doors
and windows, furniture and furnishings, heating, electrical, and
mechanical
equipment, lighting, switchboards, plumbing, ventilating, air
conditioning
3
and air-cooling apparatus, refrigerating, and incinerating
equipment,
escalators, elevators, loading and unloading equipment and systems,
stoves,
ranges, laundry equipment, cleaning systems (including window
cleaning
apparatus), telephones, communication systems (including satellite
dishes
and antennae), televisions, computers, sprinkler systems and other
fire
prevention and extinguishing apparatus and materials, security
systems,
motors, engines, machinery, pipes, pumps, tanks, conduits,
appliances,
fittings and fixtures of every kind and description (all of the
foregoing
in this paragraph (d) being referred to as the "Equipment");
(e) all right, title and interest of Mortgagor in and to all
substitutes and replacements of, and all additions and improvements
to, the
Real Estate and the Equipment, subsequently acquired by or released
to
Mortgagor or constructed, assembled or placed by Mortgagor on the
Real
Estate, immediately upon such acquisition, release, construction,
assembling or placement, including, without limitation, any and all
building materials whether stored at the Real Estate or offsite,
and, in
each such case, without any further deed, conveyance, assignment or
other
act by Mortgagor;
(f) all right, title and interest of Mortgagor in, to and under all
leases, subleases, underlettings, concession agreements, management
agreements, licenses and other agreements relating to the use or
occupancy
of the Real Estate or the Equipment or any part thereof, now
existing or
subsequently entered into by Mortgagor and whether written or oral
and all
guarantees of any of the foregoing (collectively, as any of the
foregoing
may be amended, restated, extended, renewed or modified from time
to time,
the "Leases"), and all rights of Mortgagor in respect of cash and
securities deposited thereunder and the right to receive and
collect the
revenues, income, rents, issues and profits thereof, together with
all
other rents, royalties, issues, profits, revenue, income and other
benefits
arising from the use and enjoyment of the Mortgaged Property (as
defined
below) (collectively, the "Rents");
(g) all unearned premiums under insurance policies now or
subsequently
obtained by Mortgagor relating to the Real Estate or Equipment and
Mortgagor's interest in and to all proceeds of any such insurance
policies
(including title insurance policies) including the right to collect
and
receive such proceeds, subject to the provisions relating to
insurance
generally set forth below; and all awards and other compensation,
including
the interest payable thereon and the right to collect and receive
the same,
made to the present or any subsequent owner of the Real Estate or
Equipment
for the taking by eminent domain, condemnation or otherwise, of all
or any
part of the Real Estate or any easement or other right therein;
(h) to the extent not prohibited under the applicable contract,
consent, license or other item unless the appropriate consent has
been
obtained, all right, title and interest of Mortgagor in and to (i)
all
contracts from time to time executed by Mortgagor or any manager or
agent
on its behalf relating to the ownership, construction, maintenance,
repair,
operation, occupancy, sale or financing of the Real Estate or
Equipment or
any part thereof and all agreements and options relating to the
purchase or
lease of any portion of the Real Estate or any property which is
adjacent
or peripheral to the Real Estate, together with the right to
exercise such
options and all leases of Equipment, (ii) all consents, licenses,
building
permits, certificates of occupancy and other governmental
4
approvals relating to construction, completion, occupancy, use or
operation
of the Real Estate or any part thereof, and (iii) all drawings,
plans,
specifications and similar or related items relating to the Real
Estate;
and
(i) all proceeds, both cash and noncash, of the foregoing;
(All of the foregoing property and rights and interests now owned
or
held or subsequently acquired by Mortgagor and described in the
foregoing
clauses (a) through (d) are collectively referred to as the
"Premises", and
those described in the foregoing clauses (a) through (i) are
collectively
referred to as the "Mortgaged Property").
TO HAVE AND TO HOLD the Mortgaged Property and the rights and
privileges hereby mortgaged unto Mortgagee, its successors and
assigns for the
uses and purposes set forth, until the Obligations are fully paid
and performed,
provided, however, that the condition of this Mortgage is such that
if the
Obligations are fully paid and performed, then the estate hereby
granted shall
cease, terminate and become void but shall otherwise remain in full
force and
effect.
This Mortgage covers present and future advances and re-advances,
in
the aggregate amount of the obligations secured hereby, made by the
Secured
Parties for the benefit of Mortgagor, and the lien of such future
advances and
re-advances shall relate back to the date of this Mortgage.
Terms and Conditions
--------------------
Mortgagor further represents, warrants, covenants and agrees with
Mortgagee and the Secured Parties as follows:
1. Defined Terms. Capitalized terms used herein (including in the
"Background" and "Granting Clauses" sections above) and not
otherwise defined
herein shall have the meanings ascribed thereto in the Credit
Agreement.
References in this Mortgage to the "Default Rate" shall mean the
interest rate
applicable pursuant to Section 2.14(c) of the Credit Agreement.
References
herein to the "Secured Parties" shall mean the collective reference
to (i)
Mortgagee, (ii) the Lenders (including any Issuing Lender in its
capacity as
Issuing Lender), (iii) each counterparty or party to a Specified
Hedge Agreement
or Specified Cash Management Agreement entered into with the
Borrower or
Mortgagor if such counterparty or party was a Lender (or an
Affiliate of a
Lender) at the time the Specified Hedge Agreement or Specified Cash
Management
Agreement was entered into, (iv) any other holders from time to
time of the
Obligations, and (v) the respective successors, indorsees,
transferees and
assigns of each of the foregoing.
2. Warranty of Title. Mortgagor warrants that it has good record
title
in fee simple to, or a valid leasehold interest in, the Real
Estate, and good
title to, or a valid leasehold interest in, the rest of the
Mortgaged Property,
subject only to the matters that are set forth in Schedule B of the
title
insurance policy or policies, if any, being issued to Mortgagee to
insure the
lien of this Mortgage and any other lien or encumbrance as
permitted by Section
7.2 of the Credit Agreement (the "Permitted Exceptions"). Mortgagor
shall
warrant, defend and preserve such title and the lien of this
Mortgage against
all claims of all persons and entities (not including the
5
holders of the Permitted Exceptions). Mortgagor represents and
warrants that it
has the right to mortgage the Mortgaged Property.
3. Payment of Obligations. Mortgagor shall pay and perform the
Obligations
at the times and places and in the manner specified in the Loan
Documents.
4. Requirements. Mortgagor shall comply with all covenants,
restrictions
and conditions now or later of record which may be applicable to
any of the
Mortgaged Property, or to the use, manner of use, occupancy,
possession,
operation, maintenance, alteration, repair or reconstruction of any
of the
Mortgaged Property, except where a failure to do so could not
reasonably be
expected to have a material adverse effect (considered both
individually and
together with other such failures) on (i) the current business,
operations or
condition (financial or otherwise) of the Mortgagor, (ii) the
current use of the
Mortgaged Property or (iii) the value of the Mortgaged Property
(assuming its
current use).
5. Payment of Taxes and Other Impositions. (a) Prior to the date on
which
any fine, penalty, interest or cost may be added thereto or
imposed, Mortgagor
shall pay and discharge all taxes, charges and assessments of every
kind and
nature, all charges for any easement or agreement maintained for
the benefit of
any of the Real Estate, all general and special assessments,
levies, permits,
inspection and license fees, all water and sewer rents and charges,
vault taxes
and all other public charges even if unforeseen or extraordinary,
imposed upon
or assessed against or which may become a lien on any of the Real
Estate, or
arising in respect of the occupancy, use or possession thereof,
together with
any penalties or interest on any of the foregoing (all of the
foregoing are
collectively referred to herein as the "Impositions"), except where
(i) the
validity or amount thereof is being contested in good faith by
appropriate
proceedings, and (ii) the Mortgagor has set aside on its books
adequate reserves
with respect thereto in accordance with GAAP. Upon request by
Mortgagee,
Mortgagor shall deliver to Mortgagee evidence reasonably acceptable
to Mortgagee
showing the payment of any such Imposition. If by law any
Imposition, at
Mortgagor's option, may be paid in installments (whether or not
interest shall
accrue on the unpaid balance of such Imposition), Mortgagor may
elect to pay
such Imposition in such installments and shall be responsible for
the payment of
such installments with interest, if any.
(b) Nothing herein shall affect any right or remedy of Mortgagee
under
this Mortgage or otherwise, without notice or demand to Mortgagor,
to pay any
Imposition after the date such Imposition shall have become
delinquent, and add
to the Obligations the amount so paid, together with interest from
the time of
payment at the Default Rate. Any sums paid by Mortgagee in
discharge of any
Impositions shall be (i) a lien on the Premises secured hereby
prior to any
right or title to, interest in, or claim upon the Premises
subordinate to the
lien of this Mortgage, and (ii) payable on demand by Mortgagor to
Mortgagee
together with interest at the Default Rate as set forth above.
6. Insurance. (a) Mortgagor shall maintain, with financially sound
and
reputable companies, insurance policies (i) insuring the Real
Estate against
loss by fire, explosion, theft and such other casualties as may be
reasonably
satisfactory to the Mortgagee, and (ii) insuring Mortgagor, the
Mortgagee and
the other Secured Parties against liability for personal injury and
property
damage relating to such Real Estate, such policies to be in such
form and
amounts and having such coverage as may be reasonably satisfactory
to the
Mortgagee. All such insurance
6
shall (i) provide that no cancellation, material reduction in
amount or material
change in coverage thereof shall be effective until at least thirty
(30) days
after receipt by the Mortgagee of written notice thereof, (ii) name
the
Mortgagee as an additional insured party or loss payee, (iii)
include
deductibles consistent with past practice or consistent with
industry practice
or otherwise reasonably satisfactory to the Mortgagee.
(b) If any portion of the Premises is located in an area identified
as
a special flood hazard area by the Federal Emergency Management
Agency or other
applicable agency, Mortgagor shall maintain or cause to be
maintained, flood
insurance in an amount reasonably satisfactory to Mortgagee, but in
no event
less than the maximum limit of coverage available under the
National Flood
Insurance Act of 1968, as amended.
(c) Mortgagor promptly shall comply with and conform in all
material
respects to (i) all provisions of each such insurance policy, and
(ii) all
requirements of the insurers applicable to Mortgagor or to any of
the Mortgaged
Property or to the use, manner of use, occupancy, possession,
operation,
maintenance, alteration or repair of any of the Mortgaged Property.
Mortgagor
shall not use or permit the use of the Mortgaged Property in any
manner which
would permit any insurer to cancel any insurance policy or void
coverage
required to be maintained by this Mortgage.
(d) If Mortgagor is in default of its obligations to insure or
deliver
any such prepaid policy or policies, then Mortgagee, at its option
upon 5 days'
notice to Mortgagor, may effect such insurance from year to year at
rates
substantially similar to the rate at which Mortgagor had insured
the Premises,
and pay the premium or premiums therefor, and Mortgagor shall pay
to Mortgagee
on demand such premium or premiums so paid by Mortgagee with
interest from the
time of payment at the Default Rate.
(e) If the Mortgaged Property, or any part thereof, shall be
destroyed
or damaged and the reasonably estimated cost thereof would exceed
$500,000,
Mortgagor shall give prompt notice thereof to Mortgagee. All
insurance proceeds
paid or payable in connection with any damage or casualty to the
Real Estate
shall be deemed proceeds from a Recovery Event and applied in the
manner
specified in the Credit Agreement.
(f) In the event of foreclosure of this Mortgage or other transfer
of
title to the Mortgaged Property, all right, title and interest of
Mortgagor in
and to any insurance policies then in force shall pass to the
purchaser or
grantee.
7. Restrictions on Liens and Encumbrances. Except for the lien of
this
Mortgage and the Permitted Exceptions, Mortgagor shall not further
mortgage, nor
otherwise encumber the Mortgaged Property nor create or suffer to
exist any
lien, charge or encumbrance on the Mortgaged Property, or any part
thereof,
whether superior or subordinate to the lien of this Mortgage and
whether
recourse or non-recourse.
8. Due on Sale and Other Transfer Restrictions. Except as expressly
permitted under Section 7.5 of the Credit Agreement, Mortgagor
shall not sell,
transfer, convey or assign all or any portion of, or any interest
in, the
Mortgaged Property.
9. Condemnation/Eminent Domain. Promptly upon obtaining knowledge
of the
institution of any proceedings for the condemnation of the
Mortgaged Property,
or any material
7
portion thereof, Mortgagor will notify Mortgagee of the pendency of
such
proceedings. All awards and proceeds relating to such condemnation
shall be
deemed proceeds from a Recovery Event and applied in the manner
specified in the
Credit Agreement.
10. Leases. Except as expressly permitted under the Credit
Agreement,
Mortgagor shall not (a) execute an assignment or pledge of any
Lease relating to
all or any portion of the Mortgaged Property other than in favor of
Mortgagee,
or (b) execute or permit to exist any Lease of any of the Mortgaged
Property.
11. Further Assurances. To further assure Mortgagee's rights under
this
Mortgage, Mortgagor agrees promptly upon demand of Mortgagee to do
any act or
execute any additional documents (including, but not limited to,
security
agreements on any personalty included or to be included in the
Mortgaged
Property and a separate assignment of each Lease in recordable
form) as may be
reasonably required by Mortgagee to confirm the lien of this
Mortgage and all
other rights or benefits conferred on Mortgagee by this Mortgage.
12. Mortgagee's Right to Perform. If Mortgagor fails to perform any
of the
covenants or agreements of Mortgagor, within the applicable grace
period, if
any, provided for in the Credit Agreement, Mortgagee, without
waiving or
releasing Mortgagor from any obligation or default under this
Mortgage, may, at
any time upon 5 days' notice to Mortgagor (but shall be under no
obligation to)
pay or perform the same, and the amount or cost thereof, with
interest at the
Default Rate, shall immediately be due from Mortgagor to Mortgagee
and the same
shall be secured by this Mortgage and shall be a lien on the
Mortgaged Property
prior to any right, title to, interest in, or claim upon the
Mortgaged Property
attaching subsequent to the lien of this Mortgage. No payment or
advance of
money by Mortgagee under this Section shall be deemed or construed
to cure
Mortgagor's default or waive any right or remedy of Mortgagee.
13. Remedies. (a) Upon the occurrence and during the continuance of
any
Event of Default, Mortgagee may immediately take such action,
without notice or
demand, as it deems advisable to protect and enforce its rights
against
Mortgagor and in and to the Mortgaged Property, including, but not
limited to,
the following actions, each of which may be pursued concurrently or
otherwise,
at such time and in such manner as Mortgagee may determine, in its
sole
discretion, without impairing or otherwise affecting the other
rights and
remedies of Mortgagee:
(i) Mortgagee may, to the extent permitted by applicable law, (A)
institute and maintain an action of mortgage foreclosure against
all
or any part of the Mortgaged Property, (B) institute and maintain
an
action on the Credit Agreement, the Guarantee and Collateral
Agreement
or any other Loan Document, (C) sell all or part of the Mortgaged
Property (Mortgagor expressly granting to Mortgagee the power of
sale), or (D) take such other action at law or in equity for the
enforcement of this Mortgage or any of the Loan Documents as the
law
may allow. Mortgagee may proceed in any such action to final
judgment
and execution thereon for all sums due hereunder, together with
interest thereon at the Default Rate and all costs of suit,
including,
without limitation, reasonable attorneys' fees and disbursements.
Interest at the Default Rate shall be due on any judgment obtained
by
Mortgagee from the date of judgment until actual payment is made of
the full amount of the judgment; and
8
(ii) Mortgagee may personally, or by its agents, attorneys and
employees and without regard to the adequacy or inadequacy of the
Mortgaged Property or any other collateral as security for the
Obligations enter into and upon the Mortgaged Property and each and
every part thereof and exclude Mortgagor and its agents and
employees
therefrom without liability for trespass, damage or otherwise
(Mortgagor hereby agreeing to surrender possession of the Mortgaged
Property to Mortgagee upon demand at any such time) and use,
operate,
manage, maintain and control the Mortgaged Property and every part
thereof. Following such entry and taking of possession, Mortgagee
shall be entitled, without limitation, (x) to lease all or any part
or
parts of the Mortgaged Property for such periods of time and upon
such
conditions as Mortgagee may, in its discretion, deem proper, (y) to
enforce, cancel or modify any Lease and (z) generally to execute,
do
and perform any other act, deed, matter or thing concerning the
Mortgaged Property as Mortgagee shall deem appropriate as fully as
Mortgagor might do.
(b) In case of a foreclosure sale, the Real Estate may be sold, at
Mortgagee's election, in one parcel or in more than one parcel and
Mortgagee is
specifically empowered (without being required to do so, and in its
sole and
absolute discretion) to cause successive sales of portions of the
Mortgaged
Property to be held.
(c) In the event of any breach of any of the covenants, agreements,
terms or conditions contained in this Mortgage, Mortgagee shall be
entitled to
enjoin such breach and obtain specific performance of any covenant,
agreement,
term or condition and Mortgagee shall have the right to invoke any
equitable
right or remedy as though other remedies were not provided for in
this Mortgage.
(d) It is agreed that if an Event of Default shall occur and be
continuing, any and all proceeds of the Mortgaged Property received
by Mortgagee
shall be held by Mortgagee for the benefit of the Secured Parties
as collateral
security for the Obligations (whether matured or unmatured), and
shall be
applied in payment of the Obligations in the manner set forth in
Section 6.5 of
the Guarantee and Collateral Agreement. Following any sale of the
Mortgaged
Property, or any part hereof, under the provisions of this
instrument, all
persons and parties in possession of the property sold shall be
divested of any
and all interest in and claim to the Mortgaged Property, and shall
be obligated
to immediately vacate the premises, and prior to such vacation
shall be tenants
at sufferance of the purchaser of the property sold and shall be
subject to
eviction in an action of forcible detainer; provided, the
provisions of this
subparagraph shall be subject to any agreements made in writing by
Mortgagee
with reference to any existing and/or future leases; provided,
further, the
purchaser at any foreclosure sale shall have the option but not the
obligation
to affirm any then existing leases or tenancies or otherwise
succeed to the
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